Com. v. Gillins, B.

J-S48020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BRUCE GILLINS A/K/A/ ROBERT :
BRUCE GILLINS :
:
Appellant : No. 1145 EDA 2019
Appeal from the PCRA Order Entered March 15, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0513171-1994
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY KING, J.: Filed: December 24, 2020
Appellant, Bruce Gillins a/k/a Robert Bruce Gillins, appeals pro se from
the order entered in the Philadelphia County Court of Common Pleas, which
denied his first petition brought pursuant to the Post Conviction Relief Act
(“PCRA”).1 We vacate and remand for further proceedings.
The relevant facts and procedural history of this case are as follows. On
October 3, 1996, Appellant entered a negotiated guilty plea to third-degree
murder. In exchange for his guilty plea, the Commonwealth agreed to a
sentence of 10 to 20 years’ imprisonment to run concurrent to a federal
sentence Appellant was serving. Appellant did not file a direct appeal from his
judgment of sentence.
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1 42 Pa.C.S.A. §§ 9541-9546.
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On June 6, 2017, Appellant filed the current PCRA petition pro se.
Appellant alleged ineffective assistance of plea counsel, breach of his plea
agreement, and an unlawful guilty plea. Specifically, Appellant claimed that
all parties agreed his third-degree murder sentence would run concurrent to
his federal sentence. Appellant insisted that in March 2012, he sought
commutation of his federal sentence. On or around April 5, 2012, Appellant
discovered his federal and state sentences were not running concurrent to
each other. Appellant subsequently contacted plea counsel for assistance,
who advised Appellant to file a claim with the Bureau of Prisons. After doing
so, Appellant learned by letter dated April 17, 2017, that the state court had
lacked authority to impose a state sentence concurrent to a federal sentence
and that Appellant’s sentences would run consecutively, not concurrently.
Appellant sought appointment of PCRA counsel.
Appellant also filed a pro se application for the appointment of counsel
on September 13, 2018. The court appointed PCRA counsel on January 8,
2019. Less than one week later, on January 14, 2019, counsel filed a petition
to withdraw and “no-merit” letter pursuant to Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d
213 (Pa.Super. 1988) (en banc). In the “no-merit” letter, counsel stated he
reviewed the Quarter Session file, corresponded with Appellant, researched
the applicable law, and decided Appellant’s claims were time-barred under the
PCRA. PCRA counsel initially conceded that Appellant, the Commonwealth,
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and the court had agreed Appellant’s third-degree murder sentence would run
concurrent to his federal sentence. PCRA counsel further admitted that the
state court had lacked authority to order Appellant’s state sentence to run
concurrent to the federal sentence. Nevertheless, PCRA counsel maintained
Appellant had failed to exercise due diligence by waiting 20 years to seek
clarification of his sentence, rendering Appellant’s PCRA petition time-barred.
PCRA counsel also noted that Appellant’s federal sentence was a life sentence,
so as a practical matter, Appellant was not prejudiced by consecutive rather
than concurrent sentences.
On January 18, 2019, the PCRA court issued notice of its intent to
dismiss the petition without a hearing per Pa.R.Crim.P. 907. Appellant filed a
pro se response on February 12, 2019. In his response, Appellant claimed he
thought his federal and state sentences were running concurrently until 2012,
when he sought commutation of the federal sentence. Appellant did not file
a PCRA petition at that time because plea counsel advised him to file a claim
with the Bureau of Prisons, which Appellant did. Appellant insisted he did not
learn until April 2017, that the state court had lacked authority to impose
concurrent sentences and that his sentences were running consecutively.
Appellant further alleged that he received a letter from PCRA counsel on
January 11, 2019, indicating PCRA counsel’s appointment in the matter.
Appellant was unable to call PCRA counsel right away to discuss his case
because the prison does not immediately process requests to add phone
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numbers to Appellant’s list of approved phone calls. Consequently, Appellant
asked a friend to reach out to PCRA counsel and to ask PCRA counsel to set
up a phone appointment with Appellant. When PCRA counsel was dismissive
of Appellant’s friend on the phone, Appellant next asked his brother to contact
PCRA counsel. PCRA counsel was also dismissive of Appellant’s brother.
Appellant emphasized that PCRA counsel never reached out to him to discuss
the case, even though in his appointment letter, PCRA counsel had stated that
he would contact Appellant once he reviewed Appellant’s file. Instead, PCRA
counsel simply filed the “no-merit” letter. Appellant also averred that failure
to run the sentences concurrently did prejudice Appellant because under the
recent federal “First Step Act,” Appellant might be eligible for a reduction in
his federal sentence. Appellant alleged PCRA counsel’s performance was
deficient and requested the appointment of new PCRA counsel.
On March 15, 2019, the court denied PCRA relief and let counsel
withdraw. Appellant timely filed a pro se notice of appeal on April 5, 2019.
The court did not order, and Appellant did not file, a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises three issues for our review:
Was the PCRA court’s dismissal of Appellant’s PCRA petition
unsupported by the record and based on legal error because
Appellant’s appointed PCRA counsel was ineffective for
failing to raise Appellant’s due process violations, [plea
counsel’s] ineffectiveness, breach of plea agreement,
governmental interference, trial court issued an unlawful
sentence and Appellant’s actual innocence claims given
these claims had arguable merit and if so, should Appellant’s
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conviction be vacated?
Was the PCRA court’s dismissal of Appellant’s PCRA petition
without a hearing and granting appointed PCRA counsel’s
Finley letter or not appointing new PCRA counsel an error?
Was the PCRA court’s dismissal of Appellant’s PCRA petition
without a hearing an error because the court failed to file an
independent opinion?
(Appellant’s Brief at 5).
As a preliminary matter, we must address Appellant’s allegations of
PCRA counsel’s ineffectiveness raised in response to the Rule 907 notice. This
Court has recently explained:
“[W]here an indigent, first-time PCRA petitioner was denied
his right to counsel—or failed to properly waive that right—
this Court is required to raise this error sua sponte and
remand for the PCRA court to correct that mistake.”
Commonwealth v. Stossel, 17 A.3d 1286, 1290
(Pa.Super. 2011).
As this is Appellant’s first PCRA petition, he enjoys a well-
recognized right to legal representation during this initial
collateral review of his judgment of sentence. See
Commonwealth v. Albert, 561 A.2d 736, 738 (Pa. 1989)
(“[I]n this Commonwealth one who is indigent is entitled to
the appointment of counsel to assist with an initial collateral
attack after judgment of sentence”). In this context, “the
right to counsel conferred on initial PCRA review means ‘an
enforceable right’ to the effective assistance of counsel.”
See Commonwealth v. Holmes, 79 A.3d 562, 583 (Pa.
2013) (quoting Commonwealth v. Albrecht, 720 A.2d
693, 699-700 (Pa. 1998)).
While the existence of this right is well-established, the
procedure for its enforcement, i.e., raising allegations of
PCRA counsel’s ineffectiveness, remains ill-defined under
Pennsylvania law:
[T]here is no formal mechanism in the PCRA for a
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second round of collateral attack focusing upon the
performance of PCRA counsel, much less is there a
formal mechanism designed to specifically capture
claims of previous counsel’s ineffectiveness defaulted
by initial-review PCRA counsel. Frankly, this Court
has struggled with the question of how to enforce the
“enforceable” right to effective PCRA counsel within
the strictures of the PCRA[.] The question of whether
and how to vindicate the right to effective PCRA
counsel has been discussed at length in majority
opinions and in responsive opinions .... But, the
Justices have not been of one mind respecting how to
resolve the issue, and no definitive resolution has
emerged.
Holmes, supra at 583-84. Stated more succinctly, “since
petitioners are not authorized to pursue hybrid
representation and counsel cannot allege [their] own
ineffectiveness, claims of PCRA counsel ineffectiveness
cannot ordinarily be raised in state post-conviction
proceedings[.]” Commonwealth v. Rykard, 55 A.3d
1177, 1188 (Pa.Super. 2012) (emphasis added).
However, our Supreme Court also concomitantly requires
counseled PCRA petitioners to raise allegations of PCRA
counsel’s ineffectiveness in response to a Rule 907 notice of
intent to dismiss, or risk waiver. See Commonwealth v.
Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
* * *
Subsequent interpretation of Pitts by both the Supreme
Court and this Court have reaffirmed this aspect of the
holding. See Commonwealth v. [A.] Robinson, 139 A.3d
178, 184 n.8 (Pa. 2016); Commonwealth v. Henkel, 90
A.3d 16, 25 (Pa.Super. 2014) (en banc) (“[T]he Pitts
majority mandated that a petitioner raise any allegations of
PCRA counsel ineffectiveness in response to the PCRA
court’s notice of dismissal”).
Commonwealth v. Betts, 240 A.3d 616, 621-22 (Pa.Super. 2020) (some
internal citations omitted).
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Additionally, this Court has emphasized the importance of effective
assistance of counsel regarding a petitioner’s first PCRA petition:
While the right to legal representation in the PCRA context
is not constitutionally derived, the importance of that right
cannot be diminished merely due to its rule-based
derivation. In the post-conviction setting, the defendant
normally is seeking redress for trial counsel’s errors and
omissions. Given the current time constraints of [the
PCRA], a defendant’s first PCRA petition, where the rule-
based right to counsel unconditionally attaches, may well be
the defendant’s sole opportunity to seek redress for such
errors and omissions. Without the input of an attorney,
important rights and defenses may be forever lost.
Commonwealth v. J. Robinson, 970 A.2d 455, 458-59 (Pa.Super. 2009)
(en banc). See also Commonwealth v. Perez, 799 A.2d 848, 851-52
(Pa.Super. 2002) (explaining indigent petition is entitled to appointment of
counsel on first PCRA petition, even where petition appears untimely on its
face, to determine whether petition is indeed untimely and if any timeliness
exception applies).
Further, we recognize that “a collateral petition to enforce a plea
agreement is regularly treated as outside the ambit of the PCRA and under
the contractual enforcement theory of specific performance. The designation
of the petition does not preclude a court from deducing the proper nature of
a pleading.” Commonwealth v. Kerns, 220 A.3d 607, 611-12 (Pa.Super.
2019) (internal citations and quotation marks omitted). Plea bargains play a
critical role in the criminal justice system of this Commonwealth:
Accordingly, it is critical that plea agreements are enforced,
to avoid any possible perversion of the plea bargaining
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system. The disposition of criminal charges by agreement
between the prosecutor and the accused, ...is an essential
component of the administration of justice. Properly
administered, it is to be encouraged.
In this Commonwealth, the practice of plea bargaining is
generally regarded favorably, and is legitimized and
governed by court rule…. A “mutuality of advantage” to
defendants and prosecutors flows from the ratification of the
bargain.
Assuming the plea agreement is legally possible to fulfill,
when the parties enter the plea agreement and the court
accepts and approves the plea, then the parties and the
court must abide by the terms of the agreement. Specific
enforcement of valid plea bargains is a matter of
fundamental fairness. The terms of plea agreements are
not limited to the withdrawal of charges, or the length of a
sentence. Parties may agree to—and seek enforcement of—
terms that fall outside these areas.
Although a plea agreement occurs in a criminal context, it
remains contractual in nature and is to be analyzed under
contract-law standards. Furthermore, disputes over any
particular term of a plea agreement must be resolved by
objective standards. A determination of exactly what
promises constitute the plea bargain must be based upon
the totality of the surrounding circumstances and involves a
case-by-case adjudication.
Any ambiguities in the terms of the plea agreement will be
construed against the Government. Nevertheless, the
agreement itself controls where its language sets out the
terms of the bargain with specificity. …
Commonwealth v. Snook, 230 A.3d 438, 444 (Pa.Super. 2020) (internal
citations omitted). See also Commonwealth v. Koch, 654 A.2d 1168(Pa.Super. 1995) (explaining that Commonwealth’s legal inability to fulfill
promise made in plea bargain resulted in breach of plea agreement such that
defendant’s guilty plea was not knowing and voluntary).
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In Betts, supra, the appellant had complied with Pitts by asserting
PCRA counsel’s ineffectiveness in response to the PCRA court’s issuance of
Rule 907 notice, and before entry of a final PCRA order. Betts, supra at 622.
Nevertheless, the PCRA court did not consider the allegations of PCRA
counsel’s ineffectiveness prior to dismissing his PCRA petition, so the
appellant’s “concerns were not reviewed or investigated by the PCRA court in
a meaningful way.” Id. at 623. Consequently, this Court held that the
appellant “never received the assistance of counsel in arguing the merits of
these ineffectiveness claims to the PCRA court.” Id. This Court reasoned:
Appellant’s rule-based right to effective counsel extends
throughout the entirety of his first PCRA proceeding. See
Holmes, supra at 583; Henkel, supra at 22-23 (citing
Pa.R.Crim.P. 904(F)(2)). Necessarily, Appellant had a right
to effective counsel when he alleged [PCRA counsel’s]
ineffectiveness in response to the PCRA court’s Rule 907
notice. Id. However, as a matter of Pennsylvania law, he
could not rely upon [PCRA] counsel to assist him in this
specific context. See Commonwealth v. Spotz, 18 A.3d
244, 329 n.52 (Pa. 2011) (“[C]ounsel cannot argue his or
her own ineffectiveness”); see also, e.g., Commonwealth
v. Ellis, 626 A.2d 1137, 1138-39 (Pa. 1993) (“[U]nder no
other circumstances are counsel and client permitted to
present opposing arguments”).
In this specific context, Appellant’s timely allegations of
ineffectiveness created a “substantial” and “irreconcilable”
conflict in his relationship with [PCRA counsel]. See
Pa.R.Crim.P. 122(C) (“A motion for change of counsel by a
defendant for whom counsel has been appointed shall not
be granted except for substantial reasons”);
Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032,
1041 n.10 (2011) (“To satisfy this standard, a defendant
must demonstrate he has an irreconcilable difference with
counsel that precludes counsel from representing him”).
Our case law is replete with instances where allegations of
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ineffectiveness have necessitated the appointment of
substitute counsel in the post-collateral context. See, e.g.,
Commonwealth v. Fox, 383 A.2d 199, 200 (Pa. 1978)
(“[W]e cannot assume that appellant’s [post-conviction]
counsel adequately advised appellant of his own
inadequacies ....”) (citing Commonwealth v. Sherard,
384 A.2d 234, 234 (Pa. 1977) (same)).
* * *
In sum, we believe that Appellant is entitled to remand for
the appointment of substitute PCRA counsel to prosecute
these abeyant claims of ineffectiveness. Our Supreme Court
has opined that remand and appointment of new PCRA
counsel is appropriate in such circumstances:
An indigent petitioner has the right to appointment of
counsel to assist in prosecuting a first PCRA petition.
Where that right has been effectively denied by the
action of court or counsel, the petitioner is entitled to
remand to the PCRA court for appointment of counsel
to prosecute the PCRA petition. The remand serves
to give the petitioner the benefit of competent counsel
at each stage of post-conviction review.
Commonwealth v. Kenney, 732 A.2d 1161, 1164 (Pa.
1999); see also Commonwealth v. Cox, 204 A.3d 371,
390 (Pa. 2019) (affirming Kenney for the proposition that
“remand for appointment of counsel is appropriate remedy
when the right to appointment [of] counsel has been
effectively denied”).
Betts, supra at 623-24 (internal footnote omitted).
Instantly, the record confirms that Appellant is indigent and that the
current petition is his first PCRA petition. After receiving counsel’s “no-merit”
letter and the Rule 907 notice, Appellant alleged PCRA counsel’s
ineffectiveness in his February 12, 2019 pro se response. Notwithstanding
Appellant’s allegations, the court did not address Appellant’s claims of PCRA
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counsel’s ineffectiveness in its order denying PCRA relief or Rule 1925(a)
opinion. Rather, the PCRA court adopted counsel’s timeliness analysis and
decided Appellant’s current claims were time-barred under the PCRA.
Notably, the Commonwealth concedes on appeal that Appellant’s claim
that his guilty plea was invalid has arguable merit based on the terms of the
parties’ negotiated plea agreement. (See Commonwealth’s Brief at 4, 6, 9).
Nevertheless, the Commonwealth agrees with PCRA counsel and the court that
Appellant’s claims are time-barred under the PCRA. Significantly, however,
neither PCRA counsel nor the PCRA court considered whether Appellant’s
current claims, which arguably sound in breach of his plea agreement, fall
outside of the PCRA. See Snook, supra; Kerns, supra; Koch, supra.
In light of the PCRA court’s failure to confront Appellant’s allegations of
PCRA counsel’s ineffectiveness and the possibility that Appellant’s claims fall
outside of the PCRA, the best resolution of this case is to vacate the order
denying PCRA relief and remand for further proceedings. See Kenney,
supra; Betts, supra. On remand, the court shall appoint substitute PCRA
counsel who must: (1) review Appellant’s pro se allegations of PCRA counsel’s
ineffectiveness;2 (2) discern whether Appellant’s claims fall outside of the
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2 As this Court acknowledged in Betts, “Appellant’s assertions of [PCRA
counsel’s] ineffectiveness may ultimately prove meritless. Our holding is
concerned only with ensuring those claims are given proper consideration.
Due to the nature of our holding, we express no opinion on the arguable merit
of Appellant’s assertions.” Betts, supra at 624 n.13.
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PCRA, such that the PCRA’s timeliness constraints would not apply; 3 (3) file
supplemental briefing limited to these issues within a reasonable time frame;
and (4) continue to represent Appellant for the duration of these PCRA
proceedings. The Commonwealth shall have a reasonable opportunity to
respond. Thereafter, the PCRA court shall proceed as it deems appropriate.
See id. (issuing similar instructions upon remand).
Order vacated. Case remanded with instructions. Jurisdiction is
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/24/20
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3 To the extent Appellant’s claims are cognizable under the PCRA, we
recognize that Appellant might not even be eligible for PCRA relief if he has
finished serving his state sentence, timeliness considerations aside. See 42
Pa.C.S.A. § 9543(a)(i) (explaining that to be eligible for PCRA relief, petitioner
must be currently serving sentence of imprisonment, probation or parole for
crime at issue). If substitute PCRA counsel decides Appellant’s claims are
cognizable under the PCRA, counsel should analyze Appellant’s eligibility for
PCRA relief in addition to the relevant timeliness analysis.
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